Does gender no longer work on birth certificates?

By
Chris Purdy The Canadian Press

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Renn, and her mother is Fran Forsberg pose for a photograph at their acreage just outside of Saskatoon, Tuesday, April 1, 2014. Renn Forsberg's family says that, in her heart and in her brain, their six-year-old is a girl. They want her birth certificate to reflect that. Better yet, they argue, the sex box now marked with an 'M' should be removed from the document altogether.

Renn’s mother, Fran Forsberg, says governments need to keep up with changing times. Birth certificates once listed a baby’s race and a father’s occupation, she says, and a sex designation is just as archaic.

Forsberg says Renn needed her birth certificate last year to register for kindergarten in Saskatoon and was embarrassed to be listed as a boy. That sparked her family to fight for a new birth certificate, a basic piece of paper needed to apply for most identification documents.

Forsberg says it’s also about fighting for others.

“I’ve been contacted by so many other parents that are recognizing gender-variant children,” she says. “So it’s not just about Renn.”

In the 1970s, most provinces changed their laws so people could change their birth certificates after sex reassignment surgery. The revision left out transgender children, because people must be at least 18 to be eligible for the surgery.

At the time, the legal change was “unbelievably progressive,” says Karen Busby, a law professor and expert in sexual and reproductive rights at the University of Manitoba.

Some 40 years later, she suspects all provinces are preparing for another overhaul.

In 2012, Ontario’s human rights tribunal declared it discriminatory to require an actual sex-change operation for a transgender woman who wanted to switch to female from male on her birth certificate. The province quickly revised its legislation to allow a change with a note from a doctor or psychologist testifying to a person’s “gender identity.”

The province set an age limit of 18 and over and said it needed more time to consider the issue.

Other human rights complaints have since been filed in at least three other provinces: British Columbia, Alberta and Manitoba. Busby suspects there are probably more.

“I wouldn’t be surprised to find out that there’s a complaint in just about every province to push this forward.”

Saskatchewan’s justice minister, Gordon Wyant, says he’s not ruling out changes, but is waiting for the province’s human rights commission to rule on the Forsberg complaint.

In Manitoba, a spokeswoman with the human rights commission says a complaint filed at least two years ago has prompted discussion about possible changes to legislation. A government spokesman said changes are being considered but no announcement has been scheduled.

British Columbia appears to have taken the biggest step so far. Last month, a bill passed first reading that would allow people – even children – to change the sex on their birth certificates without surgery. Children would need parental consent.

Harriette Cunningham, 12, and her family from Comox filed the complaint that led to the bill and hope it is law by the time she applies for a new passport. The girl recently visited her grandmother in Palm Springs, Calif., during spring break and got a surprising look from the customs officer examining her passport. The document lists a boy named Declan with a photo from five years ago.

Harriette has legally changed her name, but wants a new birth certificate for a new passport.

“Officials should be able to look at me, see my name, my date of birth and see I’m a nice little girl and that’s that,” says Harriette. “I don’t see why gender has to be on there.

I feel really stressed showing it to them and they have to ask questions and it makes me really uncomfortable. And I don’t think I should have to go through that every time.”

Her family is happy with the bill but hasn’t withdrawn the human rights complaint, because it wants the sex designation removed entirely from B.C. birth certificates.

The Cunninghams’ lawyer, Barbara Findlay (who spells her name in lower case), says having two options – male or female – doesn’t cut it for some people.

Australia and Germany changed their laws a couple of years ago and now allow people to mark their sex on their passports with an ‘X.’ Even Facebook recently expanded its gender category to include 58 different choices.

The growing number of human rights complaints in Canada shows this country “is waking up to the fact that gender isn’t one pink box and one blue box,” says Findlay.

The Alberta Human Rights Commission wouldn’t say if it has received complaints on the issue. But Kris Wells, a researcher with the Institute for Sexual Minority Studies and Services at the University of Alberta, knows of at least three. He has met with the province and hopes the law is amended before a tribunal forces a change.

Wells dismisses arguments that a sex designation is needed for security reasons.

“What we’re seeing with international safety and security concerns is more of a move to biometric data – retinas, fingerprints, those kinds of things that can’t easily be tampered with … Gender is now probably one of the least reliable ways to prove someone’s identity.”

Wren Kauffman, 12, of Edmonton has filed one of the birth certificate complaints. He says it’s stressful being listed as female and hopes it will change someday soon.

“I don’t feel that my gender matches with the one that’s on my birth certificate,” he says.

“I was born with female parts, but I’m a boy. And you might not get that right now. But if you think about it for a little bit, it makes a lot of sense.”